Re: [Wikimedia-l] Fund-raising goal questions

[MZMcBride]

James Alexander wrote:
> On Mon, Aug 20, 2012 at 8:44 PM, MZMcBride  wrote:
>> P.S. I happened to notice at 
>> that the "Chapter Fundraising Agreement" is not public (looks like it's
>> hosted on internal.wikimedia.org). Do you know who I'd talk to about why
>> this is and how this could be made public? I'm not sure what the background
>> to this is (if there's been past discussion on this list, even) or who to
>> ask.
> 
> Our internal search sucks but they do look to be on meta at
> https://meta.wikimedia.org/wiki/2012-13_Fundraising_Agreement_(Master) (the
> country specific ones are linked from there).

Oh, sweet, thanks!

I've added a link to 
accordingly. (That whole page could use some love if anyone has the time and
inclination.)

MZMcBride



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Re: [Wikimedia-l] Fund-raising goal questions

[Philippe Beaudette]

Ahem:

https://meta.wikimedia.org/wiki/2012-13_Fundraising_Agreement_%28Master%29
___
Philippe Beaudette
Director, Community Advocacy
Wikimedia Foundation, Inc.

415-839-6885, x 6643

phili...@wikimedia.org



On Mon, Aug 20, 2012 at 8:44 PM, MZMcBride  wrote:

> P.S. I happened to notice at 
> that the "Chapter Fundraising Agreement" is not public (looks like it's
> hosted on internal.wikimedia.org). Do you know who I'd talk to about why
> this is and how this could be made public? I'm not sure what the background
> to this is (if there's been past discussion on this list, even) or who to
> ask.
>
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Re: [Wikimedia-l] Fund-raising goal questions

[James Alexander]

On Mon, Aug 20, 2012 at 8:44 PM, MZMcBride  wrote:

>
> P.S. I happened to notice at 
> that the "Chapter Fundraising Agreement" is not public (looks like it's
> hosted on internal.wikimedia.org). Do you know who I'd talk to about why
> this is and how this could be made public? I'm not sure what the background
> to this is (if there's been past discussion on this list, even) or who to
> ask.
>
>
>
>
Our internal search sucks but they do look to be on meta at
https://meta.wikimedia.org/wiki/2012-13_Fundraising_Agreement_(Master) (the
country specific ones are linked from there).

James
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Re: [Wikimedia-l] Fund-raising goal questions

[MZMcBride]

Megan Hernandez wrote:
> On Thu, Jul 26, 2012 at 10:19 PM, MZMcBride  wrote:
>> How is the fund-raising goal determined each year?
>> 
> 
> The fund-raising goal is determined by the amount of money needed to fund
> the budget with consultation with the payment processing chapters.
> 
>> 
>> Is there a fund-raising goal set for the upcoming fund-raiser (the one
>> beginning in November 2012)?
>> 
> 
> The goal is to raise $39.5 million USD via the Wikimedia Foundation and the
> payment processing chapters over the 2012-2013 fiscal year, most of which
> will be raised during the campaign at the end of the year.
> 
>> 
>> Is there a guideline or policy regarding what happens once the fund-raising
>> goal is met?
>> 
> 
> The guideline is to start the fundraiser at the latest possible date that
> will allow the Wikimedia Foundation and the payment processing chapters to
> meet the fundraising goal.  The plan is then to stop the fundraiser on
> December 31 at midnight PST.  We do not attempt to stop the fundraiser once
> the goal is met as it is hard to measure with money coming in from around
> the world in many different forms of payment, so it is best to just keep
> the fundraiser running until December 31 to make sure we have meet our
> fundraising goal.

Hi.

Thank you very much for the detailed reply. I really appreciate it.

I hope you don't mind, but I've copied your answers to a generic fundraising
FAQ page here: . I saw that
at least one past fundraiser had a year-specific "Community FAQ", but I
didn't see a generic FAQ page anywhere. I feel like this would be a good
place to have questions such as "How can I contact the fundraising team?"
where the answers aren't tied to a particular year.

Thanks again for the insights into how the goals are set and met.

MZMcBride

P.S. I happened to notice at 
that the "Chapter Fundraising Agreement" is not public (looks like it's
hosted on internal.wikimedia.org). Do you know who I'd talk to about why
this is and how this could be made public? I'm not sure what the background
to this is (if there's been past discussion on this list, even) or who to
ask.



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Re: [Wikimedia-l] Copyright on Xrays

[Matthew Bowker]

Hi, all.

I believe Mike was commenting on the fact that his message was bounced back 
(because of an email funky) and not the topic itself.  In fact, I've been 
caught by that exact same filter myself.

Sorry if I've read your message wrong.

Matthew Bowker
User:Matthewrbowker

On Aug 20, 2012, at 6:48 PM, Ray Saintonge  wrote:

> On 08/20/12 2:01 PM, Michael Peel wrote:
>> OK, so the moderation of this mailing list appears to be broken (surely such 
>> emails should at least be held for approval by a moderator?). But please see 
>> my previous email (which I sent after hitting the 'reply' button)…
>> 
>> Thanks,
>> Mike
>> 
> It seems like a perfectly valid topic for this list.
> 
> Ray
> 
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Re: [Wikimedia-l] Copyright on Xrays

[Ray Saintonge]

On 08/20/12 10:27 AM, Cynthia Ashley-Nelson wrote:

In the US, the Health Insurance Portability and Accountability Act of 1996
(HIPAA) governs release of medical information, which includes any medium,
including spoken, written, or electronically stored. This includes videos,
photographs, and x-rays. The only person legally entitled to release this
information is the patient or individual holding medical power of attorney.
You can find more information here: http://www.hhs.gov/ocr/privacy/


On Mon, Aug 20, 2012 at 5:38 AM, Dan Rosenthal  wrote:


As I'm running out the door, two things to point out factually:

1) people who work in U.S. hospitals are very often independent
contractors, especially physicians.
2) much medical diagnostic imaging is done on an outpatient basis at an
independent imager. Even if the imager has copyright, there's no way to
know whether there is a standing assignment agreement or not.

Additionally to confuse things, HIPAA mandates access to (but not
necessarily copyright in, though I haven't really looked at it) medical
records, as well as disclosure and protection requirements.

Dan Rosenthal



This US law won't apply if the X-rays are taken at a facility outside og 
the United States.


Ray

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Re: [Wikimedia-l] Copyright on Xrays

[George Herbert]

Was this long thread launched by an actual on-wiki (or off-wiki)
Wikipedia or other WMF project issue with medical imaging images?

...

Pardon if it would be obvious should I actually check AN or some such,
but I've been busy all weekend and today.


-george

On Mon, Aug 20, 2012 at 5:39 PM, Ray Saintonge  wrote:
> On 08/20/12 12:17 PM, geni wrote:
>>
>> On 20 August 2012 12:52, David Gerard  wrote:
>>>
>>> On 20 August 2012 12:50, Anthony  wrote:

 On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:
>>>
>>>
> I'm sure that collectively we can bloviate with the best of 'em on the
> topic - but do we have any case law whatsoever anywhere on the topic
> that might give real-world pointers?
>>>
>>>
 It's a question of fact, not a question of law.
>>>
>>> Then any real-world examples of the question arising.
>>
>> I doubt it. Most X-rays aren't worth enough to be worth suing over and
>> the handful that are mostly derive for the scientific community who
>> tend not to sue people over the issue of copyright.
>>
> This certainly sums it up. Personality rights are a separate issue, and in
> most cases it should be easy to separate them except maybe conjoined twins
> and people who have swallowed a charm bracelet with their name clearly
> exposed. Breach of contractual rights and employment contracts are also a
> separate matter. It's actually easier to deal with these because something
> is spelled out. Our concern is more with situations where nothing is
> expressed before the problem comes up.
>
> My basic view is that the X-ray is copyrightable with the ownership of the
> copyright vesting in the person who invested most of the originality. If
> that person is bold enough to be the *first* person to put that image in
> fixed form there will be a presumption that he has a right to do so. Who is
> going to challenge him? A DMCA takedown order won't work, because it must
> reference the work that was infringed as well as the infringement. To get
> any more than provable damages the copyright must also be registered.
>
> It may give comfort to owners to know that copyright in a work is automatic
> without registration, but the down side of this is a huge assortment of
> material is copyright where the "true" owner has neither the knowledge or
> desire for this kind of protection.
>
> Ray
>
>
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-- 
-george william herbert
george.herb...@gmail.com

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Re: [Wikimedia-l] Copyright on Xrays

[Ray Saintonge]

On 08/20/12 2:01 PM, Michael Peel wrote:

OK, so the moderation of this mailing list appears to be broken (surely such 
emails should at least be held for approval by a moderator?). But please see my 
previous email (which I sent after hitting the 'reply' button)…

Thanks,
Mike


It seems like a perfectly valid topic for this list.

Ray

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Re: [Wikimedia-l] Copyright on Xrays

[Ray Saintonge]

On 08/20/12 12:17 PM, geni wrote:

On 20 August 2012 12:52, David Gerard  wrote:

On 20 August 2012 12:50, Anthony  wrote:

On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:



I'm sure that collectively we can bloviate with the best of 'em on the
topic - but do we have any case law whatsoever anywhere on the topic
that might give real-world pointers?



It's a question of fact, not a question of law.

Then any real-world examples of the question arising.

I doubt it. Most X-rays aren't worth enough to be worth suing over and
the handful that are mostly derive for the scientific community who
tend not to sue people over the issue of copyright.

This certainly sums it up. Personality rights are a separate issue, and 
in most cases it should be easy to separate them except maybe conjoined 
twins and people who have swallowed a charm bracelet with their name 
clearly exposed. Breach of contractual rights and employment contracts 
are also a separate matter. It's actually easier to deal with these 
because something is spelled out. Our concern is more with situations 
where nothing is expressed before the problem comes up.


My basic view is that the X-ray is copyrightable with the ownership of 
the copyright vesting in the person who invested most of the 
originality. If that person is bold enough to be the *first* person to 
put that image in fixed form there will be a presumption that he has a 
right to do so. Who is going to challenge him? A DMCA takedown order 
won't work, because it must reference the work that was infringed as 
well as the infringement. To get any more than provable damages the 
copyright must also be registered.


It may give comfort to owners to know that copyright in a work is 
automatic without registration, but the down side of this is a huge 
assortment of material is copyright where the "true" owner has neither 
the knowledge or desire for this kind of protection.


Ray

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[Wikimedia-l] X-rays

[Klaus Graf]

In Germany the person who makes the x-ray is the owner of the right
("Leistungsschutzrecht" according § 72 Copyright Act) even the work is
made for hire.

The discussion is full of confusion of privacy rights and copyright.
The distribution of the x-rays may be restricted by the patient's
rights but if x-rays are copyrighted the patient isn't the owner of
the copyright and cannot distribute the x-rays of his body.

Klaus Graf
http://archivalia.tumblr.com/

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Re: [Wikimedia-l] Copyright on Xrays

[James Heilman]

The WMF legal team has said they would provide an opinion on this
question some time next week. The law is ambiguous and I guess the
real question is how much is the foundation willing to put their neck
out.

-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com

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Re: [Wikimedia-l] Copyright on Xrays

[Michael Peel]

OK, so the moderation of this mailing list appears to be broken (surely such 
emails should at least be held for approval by a moderator?). But please see my 
previous email (which I sent after hitting the 'reply' button)…

Thanks,
Mike

On 20 Aug 2012, at 21:19, wikimedia-l-ow...@lists.wikimedia.org wrote:

> Due to a large amount of spam, emails from non-members of this list
> are now automatically rejected. If you have a valuable contribution to
> the list but would rather not subscribe to it, please send an email to
> wikimedia-l-ow...@lists.wikimedia.org and we will forward your post to
> the list. Please be aware that all messages to this list are archived
> and viewable for the public. If you have a confidential communication
> to make, please rather email i...@wikimedia.org
> 
> Thank you.
> 
> 
> From: Michael Peel 
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Date: 20 August 2012 21:36:07 BST
> To: Wikimedia Mailing List 
> Cc: Kat Walsh , Jeffery Nichols 
> 
> 
> This sounds like a question to ask on Wikimedia Commons, rather than on this 
> mailing list - particularly since the Commons community is the one that needs 
> to monitor and maintain such a legal position! Also asking the question at 
> the talk page of http://meta.wikimedia.org/wiki/Legal_and_Community_Advocacy 
> might be a good idea.
> 
> Thanks,
> Mike
> 
> On 20 Aug 2012, at 12:08, James Heilman  wrote:
> 
>> A question about copyright, who owns the copyright on Xrays and are they
>> even copyrightable? I have uploaded a few of them and no one seems to know
>> the answer. I guess the options would be:
>> 
>> 1) They are in the public domain
>> https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
>> http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
>> 
>> 2) The X ray tech who took the image
>> 3) The person / institution who paid to have the image taken
>> a) The HMO or patient if in the USA
>> b) The government if in many parts of the world
>> 4) The doctor who ordered the image
>> 5) The doctor who read the image
>> 6) The hospital / shareholders of the hospital who owns the equipment
>> 7) All of the above / some of the above / none of the above
>> 
>> Would be good to have a legal position on this.
>> -- 
>> James Heilman
>> MD, CCFP-EM, Wikipedian
>> 
>> The Wikipedia Open Textbook of Medicine
>> www.opentextbookofmedicine.com
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> 
> 
> 
> 

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Re: [Wikimedia-l] Copyright on Xrays

[Etienne Beaule]

My opinion on X-rays.  If done in private property, it is subject to
personality rights, and if in a public area, then it can be copyrighted by
the the person who took the X-ray.  Ebe123


On 2012-08-20 5:17 PM, "Sage Ross"  wrote:

> On Mon, Aug 20, 2012 at 4:04 PM, Nathan  wrote:
> 
>> It's relevant for Wikipedia, at least. I don't think the projects take a
>> view on whether someone is risking their job or following institutional
>> policies.
> 
> Right. But it's worth mentioning... especially if the projects did
> take the view that the images were public domain.
> 
>> It's also worth noting that your description is of the process
>> for publishing medical data (as a general category) at an academic medical
>> institution, the sort that has an IRB.
> 
> Yep. But it might actually be relatively easy to get good sets of
> medical images by working through those kinds of systems, and that
> could work regardless of the copyright status of the images.
> 
> -Sage
> 
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Re: [Wikimedia-l] Copyright on Xrays

[Sage Ross]

On Mon, Aug 20, 2012 at 4:04 PM, Nathan  wrote:

> It's relevant for Wikipedia, at least. I don't think the projects take a
> view on whether someone is risking their job or following institutional
> policies.

Right. But it's worth mentioning... especially if the projects did
take the view that the images were public domain.

> It's also worth noting that your description is of the process
> for publishing medical data (as a general category) at an academic medical
> institution, the sort that has an IRB.

Yep. But it might actually be relatively easy to get good sets of
medical images by working through those kinds of systems, and that
could work regardless of the copyright status of the images.

-Sage

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Re: [Wikimedia-l] Copyright on Xrays

[Nathan]

On Mon, Aug 20, 2012 at 3:37 PM, Sage Ross wrote:

> I'd say, whatever the copyright status, she'd risk her job by
> distributing something like X-rays without going through the IRB
> system. And if she got IRB permission, asserting PD status or copyleft
> status or whatever wouldn't likely be a problem.
>
> -Sage
>
>
>
It's relevant for Wikipedia, at least. I don't think the projects take a
view on whether someone is risking their job or following institutional
policies. It's also worth noting that your description is of the process
for publishing medical data (as a general category) at an academic medical
institution, the sort that has an IRB. A large proportion of imaging
nation-wide is done at private, for profit imaging centers. Such centers
may not often engage in research, but that wouldn't prevent them from using
their images in other ways (say, uploading them to Commons or providing
them to medical image repositories).

Nathan
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Re: [Wikimedia-l] Copyright on Xrays

[Sage Ross]

On Mon, Aug 20, 2012 at 3:17 PM, geni  wrote:
> On 20 August 2012 12:52, David Gerard  wrote:
>> On 20 August 2012 12:50, Anthony  wrote:
>>> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:
>>
 I'm sure that collectively we can bloviate with the best of 'em on the
 topic - but do we have any case law whatsoever anywhere on the topic
 that might give real-world pointers?
>>
>>> It's a question of fact, not a question of law.
>>
>>
>> Then any real-world examples of the question arising.
>>
>
>
> I doubt it. Most X-rays aren't worth enough to be worth suing over and
> the handful that are mostly derive for the scientific community who
> tend not to sue people over the issue of copyright.
>

>From what I've seen, copyright doesn't even enter into the
institutional perspective here. The framework is all about controlling
the flow of patient information.

My partner (a doctor doing residency at the main hospital system in
Pittsburgh) would have to go through the Institutional Review Board
system to publish medical images, even ones nominally free of
identifying information. She'd be able to have them published for
certain purposes (case studies and other things that are about medical
practice, but are not research per se) without patient permission. For
research and other purposes, she would need permission of the patients
even for nominally non-identifying medical info. But there aren't any
additional hurdles regarding assignment of copyright to the
publishers.

On the other hand, medical technicians and doctors who create
ultrasound images for pregnant women distribute them to the women (and
even intentionally frame some as "portraits", with at least a little
bit of creativity involved) to do with as they please.

I'd say, whatever the copyright status, she'd risk her job by
distributing something like X-rays without going through the IRB
system. And if she got IRB permission, asserting PD status or copyleft
status or whatever wouldn't likely be a problem.

-Sage

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Re: [Wikimedia-l] Copyright on Xrays

[geni]

On 20 August 2012 12:52, David Gerard  wrote:
> On 20 August 2012 12:50, Anthony  wrote:
>> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:
>
>>> I'm sure that collectively we can bloviate with the best of 'em on the
>>> topic - but do we have any case law whatsoever anywhere on the topic
>>> that might give real-world pointers?
>
>> It's a question of fact, not a question of law.
>
>
> Then any real-world examples of the question arising.
>


I doubt it. Most X-rays aren't worth enough to be worth suing over and
the handful that are mostly derive for the scientific community who
tend not to sue people over the issue of copyright.

-- 
geni

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Re: [Wikimedia-l] Copyright on Xrays

[Thomas Dalton]

On 20 August 2012 18:27, Cynthia Ashley-Nelson  wrote:
> In the US, the Health Insurance Portability and Accountability Act of 1996
> (HIPAA) governs release of medical information, which includes any medium,
> including spoken, written, or electronically stored. This includes videos,
> photographs, and x-rays. The only person legally entitled to release this
> information is the patient or individual holding medical power of attorney.
> You can find more information here: http://www.hhs.gov/ocr/privacy/

Privacy law is generally separate from copyright law.

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Re: [Wikimedia-l] Copyright on Xrays

[Nathan]

On Mon, Aug 20, 2012 at 1:27 PM, Cynthia Ashley-Nelson
wrote:

> In the US, the Health Insurance Portability and Accountability Act of 1996
> (HIPAA) governs release of medical information, which includes any medium,
> including spoken, written, or electronically stored. This includes videos,
> photographs, and x-rays. The only person legally entitled to release this
> information is the patient or individual holding medical power of attorney.
> You can find more information here: http://www.hhs.gov/ocr/privacy/
>

In the interests of clarity, the above applies only to information which is
individually identifying. If it has been de-identified, which is presumably
not that difficult for x-ray images, then distribution is permitted for
other purposes without the patients' authorization.

~Nathan
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Re: [Wikimedia-l] Copyright on Xrays

[Cynthia Ashley-Nelson]

In the US, the Health Insurance Portability and Accountability Act of 1996
(HIPAA) governs release of medical information, which includes any medium,
including spoken, written, or electronically stored. This includes videos,
photographs, and x-rays. The only person legally entitled to release this
information is the patient or individual holding medical power of attorney.
You can find more information here: http://www.hhs.gov/ocr/privacy/


On Mon, Aug 20, 2012 at 5:38 AM, Dan Rosenthal  wrote:

> As I'm running out the door, two things to point out factually:
>
> 1) people who work in U.S. hospitals are very often independent
> contractors, especially physicians.
> 2) much medical diagnostic imaging is done on an outpatient basis at an
> independent imager. Even if the imager has copyright, there's no way to
> know whether there is a standing assignment agreement or not.
>
> Additionally to confuse things, HIPAA mandates access to (but not
> necessarily copyright in, though I haven't really looked at it) medical
> records, as well as disclosure and protection requirements.
>
> Dan Rosenthal
>
>
> On Mon, Aug 20, 2012 at 3:33 PM, Anthony  wrote:
>
> > On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony 
> > wrote:
> > > 2012/8/20 Anthony :
> > >> Under US law (I know very little about the law of other countries):
> > >>
> > >> Unless the patient somehow contributed creatively to the image (broke
> > >> his bones in a certain creative pattern), it's certainly not the HMO
> > >> or patient.  If the X-ray tech is an employee, then it's certainly not
> > >> the X-ray tech.
> > > But the copyright of a work for hire goes to the employer. The X-ray
> > > tech would get the copyright, but they're employed by the hospital.
> > > The hospital, in turn, is employed by the patient. As such, I would
> > > think the patient does own the copyright.
> >
> > If the X-ray tech is an employee (and the work is created within the
> > scope of his employment, which I am assuming), then, under US law, the
> > tech never "gets the copyright".  The employer is the author.  The
> > tech is completely out of the loop.
> >
> > As for the hospital being "employed by the patient", not in the sense
> > of work for hire law.
> >
> > For the patient to get the copyright, they would need to enter into a
> > work for hire agreement, the details of which are long and which you
> > can easily find online.
> >
> > > Is a similar logic not
> > > applied to, say, wedding photos, in which an photographer is employed
> > > by a company which is in turn employed by the couple?
> >
> > Wedding photos are more complicated.  I could see an argument, under
> > some factual circumstances, that the couple  (and/or the decorator,
> > etc) might own copyright as a joint author.  Or they may have employed
> > the photographer directly.  Or they may have commissioned the work
> > under a work for hire agreement.  Or they might have purchased the
> > copyright in a copyright transfer.  Or they might just not own the
> > copyright in the work at all.
> >
> > ___
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-- 

Best regards,

Cindy Ashley-Nelson
"Yes. *Her again.*"
http://en.wikipedia.org/wiki/User:Cindamuse
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Re: [Wikimedia-l] Copyright on Xrays

[Thomas Dalton]

On 20 August 2012 14:25, Anthony  wrote:
>  If "X ray techs are specifically not to use creative license even
> though their job requires skill" then this would be evidence in
> support of one set of facts.

"Creative license" refers to the work containing something which isn't
strictly accurate because it improves the work artistically. Not using
creative license is not the same as not being creative. A technical
manual generally won't use any creative license - it needs to contain
the facts and only the facts - but it is still a creative work.

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Re: [Wikimedia-l] Copyright on Xrays

[Anthony]

On Mon, Aug 20, 2012 at 8:03 AM, James Heilman  wrote:
> @ Tomasz: Per "a) if the picture is taken automatically by machine in
> routine way (in case of X-ray, NMR and some other techinques this is
> usually atomatic
> and routine) - they are not copyrightable, as this is not any creative
> work." This is my understanding. X rays are taken in the exact same
> way each time. X ray techs are specifically not to use creative
> license even though their job requires skill.
>
> @ David: Yes we do have US case law. It was in the previous link but
> here is a direct link to it
> http://www.ca10.uscourts.gov/opinions/06/06-4222.pdf

There are two distinguishing cases which cite that ruling, however.
In one of them it specifically points out that whether or not a work
is creative is a question of fact (I didn't bother to read the other).
 If "X ray techs are specifically not to use creative license even
though their job requires skill" then this would be evidence in
support of one set of facts.

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Re: [Wikimedia-l] Copyright on Xrays

[Dan Rosenthal]

As I'm running out the door, two things to point out factually:

1) people who work in U.S. hospitals are very often independent
contractors, especially physicians.
2) much medical diagnostic imaging is done on an outpatient basis at an
independent imager. Even if the imager has copyright, there's no way to
know whether there is a standing assignment agreement or not.

Additionally to confuse things, HIPAA mandates access to (but not
necessarily copyright in, though I haven't really looked at it) medical
records, as well as disclosure and protection requirements.

Dan Rosenthal


On Mon, Aug 20, 2012 at 3:33 PM, Anthony  wrote:

> On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony 
> wrote:
> > 2012/8/20 Anthony :
> >> Under US law (I know very little about the law of other countries):
> >>
> >> Unless the patient somehow contributed creatively to the image (broke
> >> his bones in a certain creative pattern), it's certainly not the HMO
> >> or patient.  If the X-ray tech is an employee, then it's certainly not
> >> the X-ray tech.
> > But the copyright of a work for hire goes to the employer. The X-ray
> > tech would get the copyright, but they're employed by the hospital.
> > The hospital, in turn, is employed by the patient. As such, I would
> > think the patient does own the copyright.
>
> If the X-ray tech is an employee (and the work is created within the
> scope of his employment, which I am assuming), then, under US law, the
> tech never "gets the copyright".  The employer is the author.  The
> tech is completely out of the loop.
>
> As for the hospital being "employed by the patient", not in the sense
> of work for hire law.
>
> For the patient to get the copyright, they would need to enter into a
> work for hire agreement, the details of which are long and which you
> can easily find online.
>
> > Is a similar logic not
> > applied to, say, wedding photos, in which an photographer is employed
> > by a company which is in turn employed by the couple?
>
> Wedding photos are more complicated.  I could see an argument, under
> some factual circumstances, that the couple  (and/or the decorator,
> etc) might own copyright as a joint author.  Or they may have employed
> the photographer directly.  Or they may have commissioned the work
> under a work for hire agreement.  Or they might have purchased the
> copyright in a copyright transfer.  Or they might just not own the
> copyright in the work at all.
>
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Re: [Wikimedia-l] Copyright on X rays

[Dan Rosenthal]

I've asked on my state bar's listserv to see if anyone has any thoughts or
has any caselaw available they can refer to.  I have some speculation, but
I'm running out the door so I'll post it when I return.


Dan Rosenthal


On Mon, Aug 20, 2012 at 3:21 PM, James Heilman  wrote:

> @ Klaus So if they are copyrightable in Germany who owns the copyright?
>
> --
> James Heilman
> MD, CCFP-EM, Wikipedian
>
> The Wikipedia Open Textbook of Medicine
> www.opentextbookofmedicine.com
>
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Re: [Wikimedia-l] Copyright on Xrays

[Anthony]

On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony  wrote:
> 2012/8/20 Anthony :
>> Under US law (I know very little about the law of other countries):
>>
>> Unless the patient somehow contributed creatively to the image (broke
>> his bones in a certain creative pattern), it's certainly not the HMO
>> or patient.  If the X-ray tech is an employee, then it's certainly not
>> the X-ray tech.
> But the copyright of a work for hire goes to the employer. The X-ray
> tech would get the copyright, but they're employed by the hospital.
> The hospital, in turn, is employed by the patient. As such, I would
> think the patient does own the copyright.

If the X-ray tech is an employee (and the work is created within the
scope of his employment, which I am assuming), then, under US law, the
tech never "gets the copyright".  The employer is the author.  The
tech is completely out of the loop.

As for the hospital being "employed by the patient", not in the sense
of work for hire law.

For the patient to get the copyright, they would need to enter into a
work for hire agreement, the details of which are long and which you
can easily find online.

> Is a similar logic not
> applied to, say, wedding photos, in which an photographer is employed
> by a company which is in turn employed by the couple?

Wedding photos are more complicated.  I could see an argument, under
some factual circumstances, that the couple  (and/or the decorator,
etc) might own copyright as a joint author.  Or they may have employed
the photographer directly.  Or they may have commissioned the work
under a work for hire agreement.  Or they might have purchased the
copyright in a copyright transfer.  Or they might just not own the
copyright in the work at all.

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Re: [Wikimedia-l] Copyright on Xrays

[Tomasz Ganicz]

2012/8/20 Max Harmony :
> 2012/8/20 Anthony :
>> Under US law (I know very little about the law of other countries):
>>
>> Unless the patient somehow contributed creatively to the image (broke
>> his bones in a certain creative pattern), it's certainly not the HMO
>> or patient.  If the X-ray tech is an employee, then it's certainly not
>> the X-ray tech.
> But the copyright of a work for hire goes to the employer. The X-ray
> tech would get the copyright, but they're employed by the hospital.
> The hospital, in turn, is employed by the patient. As such, I would
> think the patient does own the copyright. Is a similar logic not
> applied to, say, wedding photos, in which an photographer is employed
> by a company which is in turn employed by the couple?
>

No. Patient is a customer of the hospital, not the employer of the
hospital :-) We are talking about legal issue, so we should stick to
legal definitions of words (not the moral ones).

In case of weeding photos all depends on what is written in the
agreement between a couple and the photographer/agency. The agreement
might and might not contain the clause of copyright transfer. If it
does not - from legal POV pictures can be used only for personal needs
- even publishing them on facebook is questionable in that case..

-- 
Tomek "Polimerek" Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on X rays

[James Heilman]

@ Klaus So if they are copyrightable in Germany who owns the copyright?

-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com

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Re: [Wikimedia-l] Copyright on Xrays

[Max Harmony]

2012/8/20 Anthony :
> Under US law (I know very little about the law of other countries):
>
> Unless the patient somehow contributed creatively to the image (broke
> his bones in a certain creative pattern), it's certainly not the HMO
> or patient.  If the X-ray tech is an employee, then it's certainly not
> the X-ray tech.
But the copyright of a work for hire goes to the employer. The X-ray
tech would get the copyright, but they're employed by the hospital.
The hospital, in turn, is employed by the patient. As such, I would
think the patient does own the copyright. Is a similar logic not
applied to, say, wedding photos, in which an photographer is employed
by a company which is in turn employed by the couple?

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[Wikimedia-l] Copyright on Xrays

[Klaus Graf]

According to German legal literature X-rays are copyrighted as simple
photographs with a 50 years post publication  term (if published 50
years after making).

There is no creativity in making an X-ray. Therefore I would say that
there are serious doubts that in the European Union X-rays are
copyrighted. In Switzerland they are definitively not copyrighted.

In "sweat of the brow" countries there is normal copyright IMHO.

Klaus Graf

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Re: [Wikimedia-l] Copyright on Xrays

[Anthony]

On Mon, Aug 20, 2012 at 7:39 AM, Thomas Dalton  wrote:
> I think you are underestimating the skill involved in medical imaging.
> For example, if you want to take an x-ray of a broken arm, you need to
> make sure the arm is oriented in the right way and the x-ray is at the
> right angle so that the break is clearly visible. That sounds like
> enough creativity to create copyright to me.

Against this would be the case cited in the OP (528 F.3d 1258), which
specifically discounts the argument that skill=creativity.

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[Wikimedia-l] Copyright on Xrays

[James Heilman]

@ Tomasz: Per "a) if the picture is taken automatically by machine in
routine way (in case of X-ray, NMR and some other techinques this is
usually atomatic
and routine) - they are not copyrightable, as this is not any creative
work." This is my understanding. X rays are taken in the exact same
way each time. X ray techs are specifically not to use creative
license even though their job requires skill.

@ David: Yes we do have US case law. It was in the previous link but
here is a direct link to it
http://www.ca10.uscourts.gov/opinions/06/06-4222.pdf

X rays once the persons name / identifiers are removed do not contain
identifiable information. Per the legal team here patient
confidentiality is thus not a concern at this point. It is like taking
pictures of someones cerebral spinal fluid as I have done here
http://en.wikipedia.org/wiki/File:CSF.JPG I did not get this person
permission.

-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com

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Re: [Wikimedia-l] Copyright on Xrays

[Tomasz Ganicz]

2012/8/20 David Gerard :
> On 20 August 2012 12:50, Anthony  wrote:
>> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:
>
>>> I'm sure that collectively we can bloviate with the best of 'em on the
>>> topic - but do we have any case law whatsoever anywhere on the topic
>>> that might give real-world pointers?
>
>> It's a question of fact, not a question of law.
>
>
> Then any real-world examples of the question arising.
>

The case I was writting was a set of human tissue pictures taken by a
members of research group working in university clinic in my city.

This is just an example:

http://commons.wikimedia.org/wiki/File:Adenocarcinoma_highly_differentiated_%28rectum%29_H%26E_magn_400x.jpg

I had discussion about it with our (Wikimedia Polska) lawer and the
legal department of the clinic. First of all the research group had
agreement from all his patients to publish this pictures in anonymous
way (i.e. not revealing to whom belongs the photographed tissues).
Then - they claimed, that although their work might be copyrightable,
they resigne from any copyright claims and finally their decission was
approved by clinic authorities (i.e. clinic had also resign from any
copyright claims no matter if they are applicable or not).

-- 
Tomek "Polimerek" Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on Xrays

[David Gerard]

On 20 August 2012 12:50, Anthony  wrote:
> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:

>> I'm sure that collectively we can bloviate with the best of 'em on the
>> topic - but do we have any case law whatsoever anywhere on the topic
>> that might give real-world pointers?

> It's a question of fact, not a question of law.


Then any real-world examples of the question arising.


- d.

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Re: [Wikimedia-l] Copyright on Xrays

[Anthony]

On Mon, Aug 20, 2012 at 7:47 AM, David Gerard  wrote:
> I'm sure that collectively we can bloviate with the best of 'em on the
> topic - but do we have any case law whatsoever anywhere on the topic
> that might give real-world pointers?

It's a question of fact, not a question of law.

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Re: [Wikimedia-l] Copyright on Xrays

[David Gerard]

I'm sure that collectively we can bloviate with the best of 'em on the
topic - but do we have any case law whatsoever anywhere on the topic
that might give real-world pointers?


- d.

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Re: [Wikimedia-l] Copyright on Xrays

[Anthony]

Under US law (I know very little about the law of other countries):

Unless the patient somehow contributed creatively to the image (broke
his bones in a certain creative pattern), it's certainly not the HMO
or patient.  If the X-ray tech is an employee, then it's certainly not
the X-ray tech.

The possibilities would be:

1) Public domain
2) Anyone who contributed creatively to the image (I guess that would
be the X-ray tech?), if they weren't an employee
3) The employer of 2, if they were an employee.
4) Someone who commissioned the work of 2 or 3 for part of a
collective work or compilation.
5) Someone who was assigned copyright in a written transfer.

I would say 2 or 3 would probably be the most likely.

On Mon, Aug 20, 2012 at 7:08 AM, James Heilman  wrote:
> A question about copyright, who owns the copyright on Xrays and are they
> even copyrightable? I have uploaded a few of them and no one seems to know
> the answer. I guess the options would be:
>
> 1) They are in the public domain
> https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
> http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
>
> 2) The X ray tech who took the image
> 3) The person / institution who paid to have the image taken
>  a) The HMO or patient if in the USA
>  b) The government if in many parts of the world
> 4) The doctor who ordered the image
> 5) The doctor who read the image
> 6) The hospital / shareholders of the hospital who owns the equipment
> 7) All of the above / some of the above / none of the above
>
> Would be good to have a legal position on this.
> --
> James Heilman
> MD, CCFP-EM, Wikipedian
>
> The Wikipedia Open Textbook of Medicine
> www.opentextbookofmedicine.com
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Re: [Wikimedia-l] Copyright on Xrays

[Thomas Dalton]

On 20 August 2012 12:30, Tomasz Ganicz  wrote:
> a) if the picture is taken automatically by machine in routine way (in
> case of X-ray, NMR and some other techinques this is usually atomatic
> and routine) - they are not copyrightable, as this is not any creative
> work.

I think you are underestimating the skill involved in medical imaging.
For example, if you want to take an x-ray of a broken arm, you need to
make sure the arm is oriented in the right way and the x-ray is at the
right angle so that the break is clearly visible. That sounds like
enough creativity to create copyright to me.

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Re: [Wikimedia-l] Copyright on Xrays

[Tomasz Ganicz]

2012/8/20 James Heilman :
> A question about copyright, who owns the copyright on Xrays and are they
> even copyrightable? I have uploaded a few of them and no one seems to know
> the answer. I guess the options would be:
>
> 1) They are in the public domain
> https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
> http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
>
> 2) The X ray tech who took the image
> 3) The person / institution who paid to have the image taken
>  a) The HMO or patient if in the USA
>  b) The government if in many parts of the world
> 4) The doctor who ordered the image
> 5) The doctor who read the image
> 6) The hospital / shareholders of the hospital who owns the equipment
> 7) All of the above / some of the above / none of the above
>

I head a discussion about it (actually about mainly histopalogical
microscopic pictures of human tissues but also about other medical
documentary photos) with some lawers and the conclusion was, that such
a pictures from legal POV are not different than just any others. So:
a) if the picture is taken automatically by machine in routine way (in
case of X-ray, NMR and some other techinques this is usually atomatic
and routine) - they are not copyrightable, as this is not any creative
work.
b) if the picture is taken by human using machine (for example USG or
pictures taken with in-body camera) - the situation is just like with
normal picture taken by camera - the author is the person who took the
picture
c) if the author is an employee who took a picture as part of his/her
normal job obligations the copyrights (at least in Poland) belongs
automatically to the employer. (usually hospital or other medical
institution).
d) if the picture was made as a work by hire (for example in private
USG operator) - who holds the copyright belongs what is writen in
operator regulations - and if the regulations do not contains any
points regarding transfer of copyright - it belongs to the operator.

Of course, except copyright owner agreement - publication of such the
pictures need acceptation by the subject of them - as it is usually a
part of medical documentation which - at least in Poland - is
confidential.


-- 
Tomek "Polimerek" Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on Xrays

[Thomas Dalton]

On 20 August 2012 12:08, James Heilman  wrote:
> A question about copyright, who owns the copyright on Xrays and are they
> even copyrightable? I have uploaded a few of them and no one seems to know
> the answer. I guess the options would be:

Why is it any different to any other work created during employment?
The employer owns the copyright in almost all those cases. The client
(patient, HMO, whatever) only owns it is there is a specific
contractual agreement to that effect, and I can't see why there would
be. It's the same as when pay a professional photographer to take nice
photos of you - they own the copyright unless you explicitly buy it
off them.

In countries with public healthcase, the employer may be a public body
and there may be different rules (are x-rays taken by NHS
radiographers under Crown Copyright?). There may also be special rules
in some countries regarding medical records, although I wouldn't
expect them to remove the copyright (just give a statutory license for
certain uses).

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Re: [Wikimedia-l] Copyright on Xrays

[Thomas Morton]

  2) The X ray tech who took the image

> 3) The person / institution who paid to have the image taken
>  a) The HMO or patient if in the USA
>  b) The government if in many parts of the world
> 4) The doctor who ordered the image
> 5) The doctor who read the image
> 6) The hospital / shareholders of the hospital who owns the equipment
> 7) All of the above / some of the above / none of the above
>
>
I'd suggest; 7.

The person who took the image, by the skilled use of X-Ray equipment
probably holds copyright.

But the image may be covered by data protection laws, and the employees
contract may also deal with things such as these.

And finally the individual being imaged as personality/privacy rights.

So; copyright with the tech, but that is only the tip of the iceberg :)

Tom
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Re: [Wikimedia-l] Legality under French law of hosting personal details such as race and sexuality in Wikipedia

[Anthony]

Well, it's good to see that France is safe from genocidal maniacs who
can't speak a language other than French, then.

On Sun, Aug 19, 2012 at 8:27 PM, Andreas Kolbe  wrote:
> I've been told (and have verified) that the French Wikipedia indeed does
> without categories to mark people as Jewish, LGBT, etc.
>
> I actually quite like that approach.
>
>
>
> On Sun, Aug 19, 2012 at 7:53 PM, Anthony  wrote:
>
>> On Sun, Aug 19, 2012 at 8:21 AM, Andreas Kolbe  wrote:
>> > The question at issue is whether French Wikimedians might be individually
>> > liable for violating French law if they add such categories in Wikipedia.
>>
>> Seems possible.
>>
>> Fortunately, Wikipedia offers both https and the ability to contribute
>> anonymously, for those who are worried about this sort of thing.

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[Wikimedia-l] Copyright on Xrays

[James Heilman]

A question about copyright, who owns the copyright on Xrays and are they
even copyrightable? I have uploaded a few of them and no one seems to know
the answer. I guess the options would be:

1) They are in the public domain
https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection

2) The X ray tech who took the image
3) The person / institution who paid to have the image taken
 a) The HMO or patient if in the USA
 b) The government if in many parts of the world
4) The doctor who ordered the image
5) The doctor who read the image
6) The hospital / shareholders of the hospital who owns the equipment
7) All of the above / some of the above / none of the above

Would be good to have a legal position on this.
-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com
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Re: [Wikimedia-l] [WikiEN-l] "Stocking personal details"

[Federico Leva (Nemo)]

charles andrès, 08/20/2012 12:27 PM:

WTF? What the link between WMF finances and the topic?  And by the way are you 
talking about the movement finances or the foundation finances, because it's 
not the same thing.


Besides, we're supposed to have higher privacy standards than, say, 
Google and I'm not aware of Google having to shut down their European 
branches. If Wikimedia projects were breaching EU laws they would just 
be doing it wrong, not the opposite; I doubt they are though.


Nemo

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Re: [Wikimedia-l] [WikiEN-l] "Stocking personal details"

[charles andrès]

WTF? What the link between WMF finances and the topic?  And by the way are you 
talking about the movement finances or the foundation finances, because it's 
not the same thing.

Charles



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Le 19 août 2012 à 18:30, Nathan  a écrit :

>> 
>> 
> That's a little Orwellian, isn't it. If a "fact" is known elsewhere, but
> not in your own country, you could be prosecuted for reporting it. So much
> for everyone not being entitled to their own facts. An example of the
> wisdom of not incorporating the WMF in the European Union, and something
> that should inject caution into efforts to more closely link the WMF and
> its finances to European chapters.
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